People v Cassar (Ashley)
Annotate this CaseDecided on July 1, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : JERRY GARGUILO, J.P., TERRY JANE RUDERMAN, ELIZABETH H. EMERSON, JJ
2016-2858 S CR
The People of the State of New York, Respondent,
against
Ashley R. Cassar, Appellant.
Christopher J. Cassar, for appellant. Suffolk County District Attorney (Alfred J. Croce of counsel), for respondent.
Appeal from a judgment of the Justice Court of the Town of East Hampton, Suffolk County (Lisa R. Rana, J.), rendered August 25, 2016. The judgment convicted defendant, upon her plea of guilty, of aggravated driving while intoxicated per se, and imposed sentence. The appeal brings up for review an order of that court dated March 29, 2015 which denied defendant's motion to dismiss simplified traffic informations and so much of an order of that court dated December 31, 2015 as denied the branch of defendant's omnibus motion seeking to dismiss the accusatory instrument. By decision and order dated December 6, 2018, this court remitted the matter to the Justice Court for a hearing and a report, and the appeal was held in abeyance in the interim (People v Cassar, 61 Misc 3d 153[A], 2018 NY Slip Op 51806[U]). The Justice Court (Lisa R. Rana, J.) has now filed its report.
ORDERED that the judgment of conviction is affirmed.
Three simplified traffic informations, each dated July 13, 2014, were filed alleging defendant's failure to yield the right-of-way while entering a roadway (Vehicle and Traffic Law § 1143), aggravated driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2-a] [a]), and common-law driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), respectively. The record also contains a misdemeanor information dated July 14, 2014, which charged defendant with aggravated driving while intoxicated per se and common-law driving while intoxicated based on the same incident. Defendant was arraigned in the Justice Court on August 14, 2014.
Defendant moved to dismiss the simplified traffic informations on the ground that they [*2]were jurisdictionally defective because supporting depositions regarding those charges were never served on her, and argued that the allegations regarding defendant's blood alcohol level were unsupported because the instrument relied upon, the Intoxilyzer 9000, was not approved by New York State for testing. Insofar as is relevant to this appeal, the People argued, with respect to the charge of aggravated driving while intoxicated per se, that defendant was arraigned on the misdemeanor information, not the simplified traffic information charging that offense. By decision and order dated March 29, 2015, the Justice Court denied defendant's motion, noting that "misdemeanor informations were filed together with the simplified informations." Defendant subsequently filed an omnibus motion seeking, insofar as is relevant to this appeal, to dismiss "the accusatory instrument" on the ground that the document entitled the "Evidential Breath Analysis Test," which provided the results of defendant's breath test, constituted a hearsay document. Insofar as is relevant to this appeal, by order dated December 31, 2015, the Justice Court denied that branch of the omnibus motion. On June 16, 2016, defendant pleaded guilty to the charge of aggravated driving while intoxicated per se. On August 25, 2016, she was sentenced to, among other things, a term of three years of probation and a fine of $2,500.
On appeal, defendant raises a number of arguments, including that, with respect to aggravated driving while intoxicated per se: the simplified traffic information was jurisdictionally defective because a supporting deposition regarding that charge was never served on her; the Justice Court improperly permitted defendant to be prosecuted by both a simplified traffic information and a "long form" misdemeanor information; the factual part of the misdemeanor information with respect to defendant's blood alcohol content was defective as the Intoxilyzer 9000 instrument was not approved by New York State for testing, and the blood alcohol content test result was not verified.
By decision and order dated December 6, 2018, this court remitted the matter to the Justice Court for a hearing and a report on, insofar as is relevant here, the issue of whether defendant was arraigned on the simplified traffic information alleging aggravated driving while intoxicated per se or upon the misdemeanor information alleging that offense, and the appeal was held in abeyance in the interim (People v Cassar, 61 Misc 3d 153[A], 2018 NY Slip Op 51806[U]). According to the Justice Court's report that was subsequently filed with this court, defendant was arraigned on the misdemeanor information.
Contrary to defendant's contention, with respect to aggravated driving while intoxicated per se, she was not prosecuted on both a misdemeanor information and a simplified traffic information—she was prosecuted on the misdemeanor information. Since the Justice Court determined that the simplified traffic information alleging aggravated driving while intoxicated per se and the misdemeanor information charging her with that offense were filed contemporaneously with the court, timing is not a factor (see People v Serrano, 53 Misc 3d 67 [App Term, 2d Dept, 9th & 10th Jud Dists 2016]). Since the Justice Court determined that defendant had been arraigned on the misdemeanor information, and "there can be only one criminal action for [any given] set of criminal charges brought against a particular defendant" (People v Lomax, 50 NY2d 351, 356 [1980]; see also People v Serrano, 53 Misc 3d 67), defendant was prosecuted on the misdemeanor information. Therefore, defendant's contention regarding dismissal of the simplified traffic information alleging aggravated driving while intoxicated per se is irrelevant. There is evidence in the record establishing that the Intoxilyzer [*3]9000 instrument used to determine defendant's breath alcohol content has been approved by the New York State Department of Health. Defendant's remaining contention with respect to aggravated driving while intoxicated per se is without merit.
Accordingly, the judgment of conviction is affirmed.
GARGUILO, J.P., RUDERMAN and EMERSON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 1, 2021
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